Opinion 09-211

December 3, 2009

Digest:         A judge may authorize his/her law clerk to conduct conferences on pending matters and to share with the parties the law clerk’s view about the case and the issues involved. However, because the judge must retain adjudicative responsibility, the law clerk must make clear that he/she is expressing his/her own opinion about the case and that the judge will make his/her own independent judicial decision regardless of the law clerk’s views.

Rules:         22 NYCRR 100.2; 100.2(A); 100.3(B)(6)(c); 100.3(B)(7); 100.3(C)(2); Opinions 00-87 (Vol. XIX); Opinion 99-48 (Vol. XVII); 89-142 (Vol. V).

Opinion:

         A judge states that he/she often assigns his/her law clerk to conference cases for him/her, both on conference days and on motion calendar days. The judge asks whether it is ethically permissible to direct the law clerk to share the law clerk’s own opinion about the case with the parties to assist them and the judge in settling motions and/or entire cases. The judge advises that he/she would instruct the law clerk to advise the parties that the opinion is his/hers alone, and that he/she is not predicting how the judge will decide the matter.

         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). In addition, a judge must dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]).

         Although a judge may not delegate judicial decision-making (see Opinion 89-142 [Vol. V]), the judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities (see 22 NYCRR 100.3[B][6][c]). This Committee has expressly recognized the close connection between a judge and his/her law clerk, in terms of work performed and public perception (see Opinion 00-87 [Vol. XIX]). It is thus not unusual for a law clerk’s responsibilities to include researching issues, drafting memoranda and decisions, and conducting preliminary and discovery compliance conferences on his/her judge’s behalf (cf. Opinion 99-48 [Vol. XVII]).

         In the Committee’s view, a judge may authorize his/her law clerk to conduct conferences on a pending matter and to share with the parties the law clerk’s view about the case and issues involved. However, the judge must ensure that he/she retains adjudicative responsibility and that the law clerk does not appear to be usurping the judge’s authority (22 NYCRR 100.2; 100.2[A]; 100.3[C][2]). To that end, the law clerk must make clear that he/she is expressing his/her own opinion about the case and that the judge will make his/her own independent judicial decision regardless of the law clerk’s views.